Cite as People ex rel. Darling v. Warden, 154 App. Div. 413 (N.Y.
1st Dept. 1913)
The People of the State of New York ex rel. Joseph F. Darling,
Respondent, v. The Warden of the City Prison of the City of New
York, Defendant.
THE PEOPLE OF THE STATE OF NEW YORK, Appellant.
First Department, January 11, 1913.
[Syllabus]
Crime - possession of firearm which may be concealed upon the
person - Penal Law, section 1897, construed - misdemeanor to keep
weapon in residence - constitutional law - police power - right of
citizen to bear arms - Federal Bill of Rights not binding on State-
expediency of legislation not question for court.
Section 1897 of the Penal Law, as amended by chapter 195 of the
Laws of 1911, making it a misdemeanor for any person over the age
of sixteen years to have in his "possession" in any city, village
or town any firearm of a size which may be concealed upon the
person without a written license, prohibits citizens from keeping
such weapon in their residence without a license, even though it is
not carried upon the person.
Said statute is not unconstitutional, but is a valid exercise of
the police power.
The second amendment to the Federal Constitution, providing that
the right of the people to keep and bear arms shall not be
infringed, is not operative upon the States.
In this State the Bill of Rights is contained in the Civil Rights
Law not in the Constitution, though the rights therein enumerated
are not created by the statute, but are such as necessarily pertain
to free men and a free State.
Before a statute can be declared null and void as an infringement
upon such rights it must clearly appear that it violates some
fundamental right of which a citizen may not be deprived by any
power.
The court cannot determine whether the legislature ought to have
enacted a particular statute or whether such statute is wise. It
can only determine whether it was within the power of the
Legislature to enact it and one who attacks a statute must show
this conclusively.
INGRAHAM, P. J., and SCOTT, J., dissented, with opinion.
APPEAL by the People of the State of New York from an order of
the Supreme Court, made at the New York Special Term and entered in
the office of the clerk of the county of New York on the 2d day of
January, 1912, sustaining a writ of habeas corpus and discharging
the relator from custody.
Robert S. Johnstone of counsel [Charles S. Whitman, District
Attorney], for the appellant.
Joseph F. Darling, in person, for the respondent.
CLARKE, J.:
The relator notified the police that he had a pistol in his
house without a permit. Thereupon a captain of police went to his
house and found a loaded revolver and some loaded shells in a small
cabinet in the bedroom adjoining the parlor. He asked the defendant
why he kept the revolver there and defendant said he preferred not
to answer the question. The Captain asked if defendant had a
permit, to which he replied no. Whereupon the captain placed the
relator under arrest and took him before a city magistrate,
charging him with a violation of section 1897 of the Penal Law, as
amended in 1911. Relator was held in $500 bail for trial at Special
Sessions. He thereupon sued out a writ of habeas corpus and was
discharged, the court saying: "The precise and only question here
involved is as to whether the possession thereby made an offense is
actual physical possession or a constructive possession. The word
'possession' means, depending on the connection in which it is
used, physical possession or constructive possession. The act in
question is a penal statute, and under well-settled principles is
to be strictly construed. To hold that every possible kind of
constructive possession is made a crime would be to give to the
language a very broad significance. By limiting it to physical
possession the necessary requirements of the language are met, and
in view of the rules governing the interpretation of penal
statutes, I do not think it is proper to extend its meaning beyond
the actual requirements of the language used. It would certainly be
going very far to assume that the Legislature intended to make
every constructive possession of such a weapon a crime; such
construction would raise a very serious question as to whether so
construed the act was not unconstitutional as without the police
power, which every sovereign State possesses." (74 Misc. Rep. 151.)
In 1911, section 1897 of the Penal Law, found in article 172,
entitled "Public Safety," provided that "A person who attempts to
use against another, or who carries, or possesses any instrument or
weapon of the kind commonly known as a slungshot, billy, sandclub
or metal knuckles, or who with intent to use the same against
another, carries or possesses a dagger, dirk or dangerous knife is
guilty of a felony.
"Any person under the age of sixteen years, who shall have,
carry or have in his possession in any public place any of the
articles named or described in the last section which it is
forbidden therein to offer, sell, loan, lease or give to him, shall
be guilty of a misdemeanor.
"Any person over the age of sixteen years, who shall have or
carry concealed upon his person in any city, village or town of
this State, any pistol, revolver or other fire-arm without a
written license therefor, theretofore issued to him by a police
magistrate of such city or village or by a justice of the peace of
such town, or in such manner as may be prescribed by ordinance of
such city, village or town, shall be guilty of a misdemeanor.
"No person not a citizen of the United States, shall have or
carry fire-arms or dangerous weapons in any public place at any
time. This section shall not apply to the regular and ordinary
transportation of fire-arms as merchandise, nor to sheriffs,
policemen or to other duly appointed police officers, nor to duly
authorized military or civil organizations when parading, nor to
the members thereof when going to and from the places of meeting of
their respective organizations."
This section was amended by chapter 195 of the Laws of 1911.
The 1st paragraph was amended by adding to the weapons enumerated.
The 2d paragraph was amended by omitting the words "in any public
place." The 3d and 4th paragraphs were amended by raising the
offense from a misdemeanor to a felony in each case. There was
inserted between the 2d and 3d paragraphs, as the section then
existed, the following: "Any person over the age of sixteen years,
who shall have in his possession in any city, village or town of
this State, any pistol, revolver or other firearm of a size which
may be concealed upon the person, without a written license
therefor, issued to him by a police magistrate of such city or
village, or by a justice of the peace of such town, or in such
manner as may be prescribed by ordinance in such city, village or
town, shall be guilty of a misdemeanor."
Evidently the Legislature intended to define, and provide
punishment for, a different offense from any that had theretofore
been covered by the section. It was inserted immediately before a
paragraph which provided that any person over the age of sixteen
years who shall have or carry concealed upon his person a pistol
without a license should be guilty of a felony; and the Legislature
had used in two of the other paragraphs of the same section the
words "who shall have, carry or have in his possession," and "who
shall have or carry " and in the other "who carries or possesses."
But when it came to amend by inserting this entirely new provision
in the center of the section, the wording of which was clear and
before the Legislature for amendment, it left out the word
"carries," which appeared in each of the other paragraphs, and
provided that "any person over the age of sixteen years who shall
have in his possession * * * any pistol * * * of a size which may
be concealed upon the person, without a written license therefor,
* * * shall be guilty of a misdemeanor, "
The learned court at Special Term has limited the language of
the paragraph added to the section by, in effect, writing into the
language thereof words which the Legislature left out, so that he
makes it read, any person who shall carry or have in his physical
possession any pistol which may be concealed upon the person shall
be guilty of a misdemeanor. As the following clause already read
that any person who shall have or carry concealed upon his person
a pistol shall be guilty of a felony, this construction would make
the offense a felony or a misdemeanor, depending upon whether the
pistol should be carried upon the person concealed, or not; and the
sole effect of the act, which was passed, after considerable public
discussion, as a forward step in an attempt to limit crimes of
violence, would be to provide against the open carrying of pistols
which were of a size to be concealed -- an utterly unreasonable
conclusion in view of the fact that there was no evil of that kind
to be protected against and that such a remedy for the real evil
that did exist would be inapplicable and inefficient. The
legislation must be interpreted in view of the preceding condition
of the law and the evil aimed at. The language itself, "any pistol
* * * of a size which may be concealed upon the person," indicated
that the Legislature intended exactly what it said, to prohibit a
person at any time and in any place, within a city, village or
town, to have such a pistol in his possession without the permit
required.
As bearing upon the intention of the Legislature, it is worthy
of notice that said chapter 195 of the Laws of 1911, added to
article 172 of the Penal Law an entirely new section, as follows:
"section 1913. Sale of pistols, revolvers and other firearms.
Every person selling a pistol, revolver or other firearm of a size
which may be concealed upon the person, whether such seller is a
retail dealer, pawnbroker or otherwise, shall keep a register in
which shall be entered at the time of sale, the date of sale, name,
age, occupation and residence of every purchaser of such a pistol,
revolver or other firearm, together with the calibre, make, model,
manufacturer's number or other mark of identification on such
pistol, revolver or other firearm. Such person shall also, before
delivering the same to the purchaser, require such purchaser to
produce a permit for possessing or carrying the same as required by
law, and shall also enter in such register the date of such permit,
the number thereon, if any, and the name of the magistrate or other
officer by whom the same was issued. Every person who shall fail to
keep a register and to enter therein the facts required by this
section, or who shall fail to exact the production of a permit to
possess or carry such pistol, revolver or other firearm, if such
permit is required by law, shall be guilty of a misdemeanor. Such
register shall be open at all reasonable hours for the inspection
of any peace officer. Every person becoming the lawful possessor of
such a pistol, revolver or other firearm, who shall sell, give or
transfer the same to another person without first notifying the
police authorities, shall be guilty of a misdemeanor. This section
shall not apply to wholesale dealers."
In People ex rel. Brown v. Woodruff (32 N. Y. 364) the court
said: "It is always competent for the Legislature to speak clearly
and without equivocation, and it is safer for the judicial
department to follow the plain intent and obvious meaning of the
act, rather than to speculate upon what might have been the views
of the Legislature in the emergency which may have arisen."
In Tompkins v. Hunter (149 N. Y. 117, 132) the court said: "In
construing statutes it is a well-established rule that resort must
be had to the natural signification of the words employed, and if
they have a definite meaning which involves no absurdity or
contradiction, there is no room for construction, and courts have
no right to add to or take away from that meaning. (Newell v.
People, 7 N. Y. 9, 97; McCluskey v. Cromwell, 11 N, Y. 593, 601;
People ex rel. Brown v. Woodruff 32 N. Y. 355, 364; Matter of
Miller, 110 N. Y. 216, 222.) * * *
"In the Matter of Miller [110 N. Y. 216], where it was
contended that the reason and equity of a statute brought within
its operation certain parties not mentioned in it, it was said: 'If
that be so, it constitutes no reason for controlling its language,
although it might seem that the Legislature would have provided for
such a case had their attention been directed to it. It is not the
duty of courts to disregard the plain words of a statute, even in
favor of what may be termed an equitable construction."
In People v. Luhrs (195 N. Y. 377) the court reiterated "the
rule of construction that all the words of a statute are to be
given effect, if possible. It would be unreasonable to hold that
the Legislature intended to prohibit the same act by two successive
commands, expressed in two successive clauses, each of which makes
that identical act a crime, when the statute permits the
construction that the second clause was aimed at a different evil,
caused by a different act, the prohibition of which was necessary
to furnish the complete protection which it was the object of the
Legislature to afford."
Relator respondent, in his brief upon this appeal, repudiates
the construction placed upon the act by the Special Term and says:
"It seems fair to believe that the Legislature did mean to prohibit
constructive possession in the home of the unlicensed home-
revolver. * * * The only question that relator submits on this
appeal [is] the constitutionality of the law for licensing the
possession of the home-revolver." He says further that he
"explicitly abandons all narrow and technical considerations by
admitting that an unlicensed possession of a concealable weapon,
committed by having a concealable revolver at home in a drawer or
cabinet, is prohibited by the statute. By further admitting that
constructive possession of a revolver in the home was prohibited by
the statute as much as an actual physical possession. By further
admitting that the prohibition relates to citizens of New York
State and that the Legislature had the home in mind as much as it
had public places in mind when it made this prohibition; by
admitting further that there is nothing obscure in the language of
the statute in so far as an intention to prohibit the possession in
the home of revolvers without a license therefor." What he stands
upon is the inherent and inalienable right to keep and bear arms;
declared by the English Bill of Rights, inherited by the Colonies,
recognized by the Bill of Rights as adopted in this State, and in
the Constitutions of many other States, and alluded to in the
second amendment to the Constitution of the United States, which
provides: "A well regulated militia being necessary to the security
of a free State, the right of the people to keep and bear arms
shall not be infringed."
It is settled by a long line of authorities that the first ten
amendments to the Constitution of the United States are not
operative on the States. (Barron v. Mayor and City Council of
Baltimore, 7 Pet. 243; Spies v. Illinois, 123 U. S. 131; Brown v.
New Jersey, 175 id. 172; Maxwell v. Dow, 176 id. 581; Twining v.
New Jersey, 211 id. 78.) In Robertson v. Baldwin (165 U. S. 275)
Brown, J., said: "The law is perfectly well settled that the first
ten amendments to the Constitution, commonly known as the Bill of
Rights, were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities
which we had inherited from our English ancestors, and which had
from time immemorial been subject to certain well-recognized
exceptions arising from the necessities of the case. In
incorporating these principles into the fundamental law there was
no intention of disregarding the exceptions, which continued to be
recognized as if they had been formally expressed. Thus * * * the
right of the people to keep and bear arms * * * is not infringed
by laws prohibiting the carrying of concealed weapons." And it has
been specifically held that the second amendment, here relied upon,
has no other effect than to restrict the powers of the National
government. As said by the chief justice in United States v.
Cruikshnnk (92 U. S. 542), the right of the people to keep and bear
arms "is not a right granted by the Constitution. neither is it in
any manner dependent upon that instrument." (See, also, Presser v.
Illinois, 116 U. S. 252; Miller v. Texas, 153 id. 533; Andrews v.
State, 50 Tenn. 165.)
In People v. Persce (204 N. Y. 397), in passing upon section
1897 of the Penal Law prior to the amendment here under
consideration, the Court of Appeals said: "Neither is there any
constitutional provision securing the right to bear arms which
prohibits legislation with reference to such weapons as are
specifically before us for consideration. The provision in the
Constitution of the United States that 'the right of the people to
keep and bear arms shall not be infringed' is not designed to
control legislation by the State. (Presser v. Illinois, 116 U. S.
252.) There is no provision in the State Constitution at least
directly bearing on this subject, but only in the statutory Bill of
Rights."
The Legislatures of nearly all the States have enacted
statutes making it an indictable offense to carry concealed
weapons. The general rule is stated in the American and English
Encyclopaedia of Law (Vol. 5 [2d, ed.] p. 731): "The provisions of
the State statutes prohibiting the carrying of concealed weapons do
not infringe any constitutional right of the citizen, but are
merely police regulations forbidding the carrying of weapons in a
particular manner which is found dangerous to the safety and peace
of the citizen."
In People v. Demorio (123 App. Div. 665) the Appellate
Division in the Second Department said: "That part of section 410
of the Penal Code pertinent to this case provides: 'Any person over
the age of sixteen years, who shall have or carry concealed upon
his person in any city or village of this State, any pistol,
revolver, or other firearm, without a written license therefor,
theretofore issued to him by a police magistrate of such city or
village, * * * shall be guilty of a misdemeanor.' There is no
dispute that the defendant was found outside of a bar in a barroom
with a revolver in his pocket. The appeal rests upon the contention
that the defendant was on his own premises, and that any proof of
intent was lacking. The statute does not contain any exception
which permits the carrying while on one's own premises of such a
weapon concealed about the person. Wharton on Criminal Law (10th
ed. section 1557) says: 'It is no defense that the weapons, when
there is no such exception in the statutes, were only carried about
in the defendant's own house.' Bishop on Statutory Crimes (3d ed.
section 789) says: 'Nor will it avail him that the carrying was on
his own premises unless the statute has this exception,' citing
cases. (See, too, Harman v. State, 69 Ala. 248; Carroll v. State,
28 Ark. 99; Maupin v. State, 89 Tenn. 367.) The mere fact that a
man carries such a weapon in his own curtilage does not warrant the
conclusion that he would not use it if occasion offered -- and does
not negative the conclusion that he did not have it under such
circumstances for any wrongful, offensive or defensive purposes.
This part of the statute quoted does not contain any provision as
to intent to use the same, hence the intent may be presumed from
the commission of the act."
The provisions of the Bill of Rights, in this State, are
embedded in the statutes, to wit, the Civil Rights Law (Consol.
Laws, chap. 6 [Laws of 1909, chap. 14], art. 2), and not in the
Constitution. Nevertheless we fully recognize the proposition that
the rights enumerated in the Bill of Rights were not created by
such declaration. They are of such character as necessarily
pertains to free men in a free State. But in order to appeal
thereto for the purpose of declaring null and void an act of the
Legislature, possessing all the law-making power of the people, it
is necessary, before the act is declared null and void, that it
should clearly be made to appear that it is in flat violation of
some fundamental right of which the citizen may not be deprived by
any power.
The right to keep and bear arms is coupled with the statement
why the right is preserved and protected, viz., that "a well
regulated militia being necessary to the security of a free State."
(Civil Rights Law, section 4.) If the Legislature had prohibited
the keeping of arms, it would have been clearly beyond its power.
As said by the Supreme Court of the United States in Presser v.
Illinois (supra): "It is undoubtedly true that all citizens capable
of bearing arms constitute the reserved military force or reserve
militia of the United States as well as of the States, and in view
of this prerogative of the general government, as well as of its
general powers, the States cannot, even laying the constitutional
provision in question out of view, prohibit the people from keeping
and bearing arms, so as to deprive the United States of their
rightful resource for maintaining the public security, and disable
the people from performing their duty to the general government.
But as already stated, we think it clear that the sections under
consideration do not have this effect."
In English v. State (35 Tex. 473), in referring to a statute
prohibiting the carrying of certain specified deadly weapons, among
others, pistols, daggers, slungshots and bowie knives, the court
said: " To refer the deadly devices and instruments called in the
statute 'deadly weapons,' to the proper or necessary arms of a
'well-regulated militia,' is simply ridiculous, No kind of
travesty, however subtle or ingenious, could so misconstrue this
provision of the Constitution of the United States, as to make it
cover and protect that pernicious vice, from which so many murders,
assassinations, and deadly assaults have sprung, and which it was
doubtless the intention of the Legislature to punish and prohibit.
The word 'arms' in the connection we find it in the Constitution of
the United States, refers to the arms of a militiaman or soldier,
and the word is used in its military sense. The arms of the
infantry soldier are the musket and bayonet; of cavalry and
dragoons, the sabre, holster pistols and carbine; of the artillery,
the field piece, siege gun, and mortar, with side arms."
Many other cases are to the same effect in interpreting the
character of "arms" referred to and upholding the statutes against
the carrying of concealed weapons.
In the statute at bar the Legislature has not prohibited the
keeping of arms. For the safety of the public, for the preservation
of the public peace, in the exercise of the police power, the means
employed being within its discretion and not in that of the courts,
unless flagrantly in violation of constitutional provisions, the
Legislature has passed a regulative, not a prohibitory, act.
Legislation which has for its object the promotion of the public
welfare and safety falls within the scope of the police power and
must be submitted to even though it imposes restraints and burdens
on the individual. The rights of the individual are subordinate to
the welfare of the State. The only question that can then arise is
whether the means employed are appropriate and reasonably necessary
for the accomplishment of the purpose in view and are not unduly
oppressive. (People ex rel. Nechamcus v. Warden, etc., 144 N. Y.
529; People v. Ewer, 141 id. 129; Wright v. Hart, 182 id. 330;
Holden v. Hardy, 169 U. S. 366; Gundling v. Chicago, 177 id. 183;
Lemieux v. Young, 211 id. 459.)
There had been for many years upon the statute books a law
against the carriage of concealed weapons. No court in this
country, so far as I know, has ever declared such a law in
violation of the Constitution or the Bill of Rights. It did not
seem effective in preventing crimes of violence in this State. Of
the same kind and character, but proceeding a step further with the
regulatory legislation, the Legislature has now picked out one
particular kind of arm, the handy, the usual and the favorite
weapon of the turbulent criminal class, and has said that in our
organized communities, our cities, towns and villages where the
public peace is protected by the officers of organized government,
the citizen may not have that particular kind of weapon without a
permit, as it had already said that he might not carry it on his
person without a permit. If he has it in his possession, he can
readily stick it in his pocket when he goes abroad. In the attempt
to prevent this particular kind of crime, the carrying of concealed
weapons, the Legislature says that possessing a concealable pistol
shall be a misdemeanor. It is an attempt to keep away temptation,
opportunity. If the citizen carries it concealed on his person it
is a felony; if he has it in his possession handy and ready
whenever the impulse shall come to violate the law, he shall he
guilty of a misdemeanor, unless a permit is procured. The
Legislature assumed that the obligation to procure the permit would
be a most effective preventive to the possession of such weapon by
the criminal classes.
I am unable to persuade myself that such an act, regulating a
right which is not denied, is not a legitimate exercise of the
police power of the State. Whether it is a wise law, whether it
will accomplish the purpose for which it was intended, whether it
will check crimes of violence, is not the business of the court to
inquire. If it fails to accomplish the purpose intended, if it
creates more evil than good, if it is an annoyance and an incentive
to blackmail, it call easily be repealed by the same law-making
power which enacted it. The sole question for the court is, not
whether the Legislature ought to have enacted the particular
statute, not whether the particular statute was wise, but solely
whether it was within the power of the Legislature to adopt; and
when a litigant comes into court to ask the court to declare a
particular statute null and void as being beyond the power of the
Legislature to pass he must show precisely and conclusively that it
is beyond such power.
"Whether the legislation was wise is not for us to consider.
The motives actuating and the inducements held out to the
Legislature are not the subject of inquiry by the courts, which are
bound to assume that the law-making body acted with a desire to
promote the public good. Its enactments must stand, provided always
that they do not contravene the Constitution, and the test of
constitutionality is always one of power-nothing else." (Bohmer v.
Haffen, 161 N. Y. 390, 399.)
"This is not a question of substituting the judgment of the
court for that of the Legislature. If the act be within the power
of the State it is valid, although the judgment of the court might
be totally opposed to the enactment of such a law. But the question
would still remain: Is it within the police power of the State ?
and that question must be answered by the court." (Lochner v. New
York, 198 U. 8. 45, 56.)
It should be borne in mind that this appeal is in a habeas
corpus proceeding, brought by the relator solely to test the
validity of the law; that he concedes the possession in his house
of a loaded revolver, and that such possession and such weapon came
within the purview of the law; that it has been held under the
former law that the carrying of a concealed weapon upon one's
person upon his own premises was prohibited by said law (People v.
Demorio, supra), and that the Court of Appeals, in People v. Persce
(supra), has held that a theoretical, technical and fanciful
construction was not to be put upon the law, saying of the former
statute: "It clearly should not be construed to mean a possession
for instance such as would theoretically and technically follow
from the legal ownership of a weapon in a collection of curious and
interesting objects."
As the former law prohibited the carrying concealed a
revolver upon the person, even upon one's own premises, the present
law is but a step further and prohibits the possession of a
concealable revolver upon the premises without a permit.
As I think that the statute is merely along the line of
regulation, and fairly within the undoubted police power of the
Legislature, I think it must be sustained by the courts.
It follows, therefore, that the order appealed from should be
reversed, and that the writ of habeas corpus should be quashed and
the relator remanded.
LAUGHLIN and MILLER, JJ., concurred; INGRAHAM, P. J., and
SCOTT, J., dissented.
SCOTT, J. (dissenting):
I am unable to concur in the construction given by my brother
CLARKE to section 1897 of the Penal Law, as amended by chapter 195
of the Laws of 1911. I fully recognize the useful rules of
construction compiled by him from numerous reported cases, but
there is one other rule, to which he does not refer, but which is
well settled, which is that every statute shall be given a
reasonable construction, where its language is susceptible of more
than one construction, and in determining what is a reasonable
construction, regard is to be had not only to the language but also
to the evil sought to be guarded against and to the nature of the
remedy provided. This is especially true of statutes like the one
now under consideration which is highly penal, creates a crime out
of that which was formerly lawful and relies for its authority upon
the existence of that somewhat vague and shadowy right known as the
police power.
It is entirely clear, and is not disputed that prior to the
amendment of 1911 it was not unlawful for a resident over sixteen
years of age to have and keep in his house, but not on his person,
a pistol, and no provision was made for a license for such
possession. The purpose of the present act was to prevent the use
or the temptation to use pistols hastily, improperly or
unnecessarily. The opportunity and temptation so to use a pistol is
undoubtedly greater when such a weapon is in the physical
possession of a person than when it is merely in his constructive
possession, and the evident purpose of the act can be completely
carried out without giving a forced meaning to the word
"possession" as used in the amendment. That the Legislature
intended that its prohibition should be confined to pistols carried
on the person, and thus in the physical possession of the owner,
seems to me to be strongly indicated by the limitation of the
articles prohibited to pistols "of a size which may be concealed
upon the person." Under the construction now sought to be given to
the act it would be perfectly legal to keep at one's bedside or in
a cabinet a blunderbuss or a horse pistol, or whatever modern
weapons correspond in size to those ancient arms, but unlawful to
so keep their smaller relative of a size that might be concealed
upon the person. And when we come to consider the size of pistols
thus forbidden, it is clear that it must be considered with
reference to a clothed, and not an unclothed, person for it is
difficult to conceive of a lethal weapon so small that it could be
concealed upon the person otherwise than by clothing.
In determining the construction to be given to a particular
clause in a section of the act we should consider the whole
section, and the sense in which similar words are used. The purpose
of the whole section is clearly to provide, so far as legislation
will be effective for said purpose, against the carrying of pistols
by criminals and other persons who may, it was feared, make an
improper use of them. It was not intended to absolutely and
entirely prohibit such carrying because provision is made for the
issue of licenses to persons approved by certain magistrates.
Of course no such prohibition can be completely effective
with respect to the class of persons against whom it is principally
directed, and probably no one ever thought it would be, but the
best the Legislature deemed it possible to do was to enact the
prohibition and attach a heavy penalty for its violation. The
practical result of the construction now sought to be given to the
act will be that the professional criminal will generally violate
the act and take his chances of discovery and punishment, while the
law abiding citizen will be obliged to disarm himself of his only
effective protection against the predatory classes. The best police
force in the world cannot always, or even usually, anticipate and
prevent crimes of violence. They can and usually do preserve peace
and order, and sometimes discover the perpetrators of crimes, but
they can seldom prevent. A law-abiding citizen in his walks abroad
can usually avoid dangerous localities, and if he is compelled to
traverse them can obtain a license to carry a defensive weapon, but
in his own house, wherever it may be situated, he can never be
entirely secure against the midnight marauder. For protection there
he is compelled to rely upon himself and upon such means of defense
as he may have at hand. The construction now sought to be given to
the act would deprive him of such protection.
I am, therefore, satisfied that the true construction of the
act, and one which does no violence to its language, is that
adopted by the learned justice at Special Term, and which accords
well with the reasonable construction given to section 1897 of the
Penal Law in People v. Persce (204 N. Y. 397). The order appealed
from should be affirmed.
INGRAHAM, P. J., concurred.
Order reversed, writ quashed and relator remanded. Order to be
settled on notice.